Lee v City of New York
Annotate this CaseDecided on December 22, 2015
Supreme Court, Bronx County
Melvin Lee and Carol Lee, Plaintiffs,
against
The City of New York, the New York City Police Department, Detective Carlos Marchena (Shield No. 6212) and P.O. "John Doe," fictitious name meant to designate police officer who permitted injury to plaintiff, and Julio E. Gonzalez, Defendants.
306089-2011
Plaintiffs:
Robert J. Genis, Esq.
Sonin & Genis, Esqs.
One Fordham Plaza - Suite 907
Bronx, NY 10458
Defendants the City of New York and Detective Carlos Marchana:
Robert W. Gordon, Esq.
New York City Law Department - Bronx Tort Division
198 East 161st Street, 3rd Floor
Bronx, NY 10451
Defendant Julio E. Gonzalez:
Steven I. Lubowitz, Esq.
Law Offices of Steven I. Lubowitz
700 White Plains Road, Suite 309
Scarsdale, NY 10583
Alexander W. Hunter Jr., J.
The motion by the defendants the City of New York and Detective Carlos Marchena (hereinafter the "City") for an order staying the entry of judgment until 60 days after the decision on all post-trial motions; setting aside the jury's verdict and granting judgment for the defendants; setting aside the verdict as being inconsistent and against the weight of the evidence; setting aside the verdict and granting a new trial due to material trial errors that prejudiced the City; setting aside the verdict and granting a new trial on damages as damages were excessive; and dismissing the claims against Detective Carlos Marchena, is granted in part and denied in part.
The trial of this matter involved personal injuries sustained by plaintiff Melvin Lee (herein "Lee") on June 30, 2011, when defendant Julio Gonzalez (herein "Gonzalez"), while being closely followed by an unmarked police mini-van, driven occasionally at an excessive speed with abrupt lane changes, struck him as he was attempting to cross the street at the intersection of Story Avenue and Boynton Avenue, in the County of Bronx, City of New York. Plaintiff Lee was 76 years of age at the time of the accident.
On July 15, 2015, the jury rendered a verdict in favor of plaintiff Lee, apportioning 100% of the fault to the City defendants. Lee sustained the following injuries: (1) fractured left elbow, with extruding bone; (2) comminuted right leg fracture; (3) comminuted fracture of the pelvis; (4) five fractured ribs; (5) fractured right foot; (6) lacerated liver; and (7) ruptured bladder. The jury awarded plaintiff damages as follows: past pain and suffering in the amount of $8,000,000; future pain and suffering in the amount of $14,000,000; past and future medical treatment in the total amount of $2,000,700; and lost earnings in the total amount of $204,672. The jury also awarded plaintiff Carol Lee damages as follows: past loss of services in the amount of $2,000,000; and future loss of services, for a period of ten years, in the amount of $2,000,000.
This court will not address each of the City's points and sub-points in support of its motion to set aside the jury's verdict and damages award and will only refer to them generally.
The City defendants first argue that the claims and cross-claims against Detective Marchena should be dismissed as he was not named in the notice of claim, pursuant to General Municipal Law 50(e)(1). Next, they assert that the claims against the City of New York should be dismissed as no party could make out a prima facie case of negligence or recklessness under any logical interpretation of the evidence. The City also argues that a new trial must be ordered as the verdict is inconsistent with the weight of the evidence which unequivocally supports a finding that all of the fault lay with defendant Gonzalez, considering that defendant Gonzalez admitted to: (1) seeing Lee before the impact; (2) failing to slow down upon approaching him; and (3) striking Lee with his vehicle.
The City further asserts that all claims and cross-claims against Detective Marchena should be dismissed as he was entitled to governmental immunity inasmuch as all of his actions at issue involved the exercise of discretion. Additionally, the City argues that the verdict should be set aside and a new trial ordered based on multiple materially prejudicial evidentiary rulings and a failure to charge the jury with various relevant provisions.
Finally, the City avers that the jury's award for damages was excessive and deviated substantially from what is reasonable based on similar cases and circumstances, and that, therefore, the awards must be vacated and a new trial on damages should be granted.
The City cites numerous cases in support of their arguments that: (1) the award to Melvin Lee for past pain and suffering should be reduced from $8 million to an amount in the range of $1 million to $3 million; (2) the award to Melvin Lee for future pain and suffering should be reduced from $14 million to an amount in the range of $450,000 to $3 million; (3) the award to Carol Lee for future loss of services and society should coincide with a life expectancy of seven years, not ten years; and (4) the award to Melvin Lee for future medical treatment in the amount of $1.5 million should be set aside as a matter of law as there was no evidentiary basis to support that amount.
Plaintiffs oppose the City's motion and argue first that the motion should be denied outright since the City failed to submit a copy of the complete trial transcript with their motion. Next, plaintiffs oppose the motion in its entirety arguing that there was ample evidence presented from both sides for the jury to have reasonably concluded that the City recklessly and negligently commenced a chase of defendant Gonzalez, while failing to utilize any warning devices, and that defendant Gonzalez acted as a reasonably prudent person would under the facts presented. Plaintiffs cite to a plethora of cases which, they argue, contain similar facts to the case at bar and, thus, should be taken as authority by this court in determining whether the damages awarded to plaintiffs are excessive.
Co-defendant Gonzalez opposes the City's motion with respect to the verdict on liability, asserting that the jury's unanimous verdict as the liability of the City should not be disturbed. Defendant Gonzalez believes that based upon the verdict, the jury found the City of New York through its officers failed to use the degree of care that was reasonable under the circumstances and also acted recklessly by pursuing defendant Gonzalez through the streets of the Bronx for an alleged traffic violation. However, Gonzalez does join in the City's argument that the award for damages was excessive.
With regard to General Municipal Law Section 50-e Notice of Claim, "the test of the sufficiency of a Notice of Claim is merely whether it includes information sufficient to enable the city to investigate. Nothing more may be required." Brown v. City of New York, 95 NY2d 389, 393 (2000). Furthermore, in determining whether the city was prejudiced by any omission, mistake, or irregularity in the notice of claim, the court may look to evidence adduced at statutory pretrial hearings involving examination of claimant, and to such other evidence as is properly before court. Goodwin v. New York City Housing Authority, 42 AD3d 63 (1st Dept. 2007). Here, plaintiffs' notice of claim was served within the 90-day limit and was properly corrected nunc pro tunc by this court to include Detective Marchena. As such, the claims against Detective Marchena will not be dismissed and that branch of the City's motion is denied.
Pursuant to CPLR 4404(a), the court may set aside a jury verdict and either: (1) enter [*2]judgment to whichever party is entitled to it as a matter of law; or (2) order a new trial in the interest of justice where the verdict is contrary to the weight of the evidence. See CPLR 4404(a). It has been well settled that "although these two inquiries may appear somewhat related, they actually involve very different standards and may well lead to disparate results." Cohen v. Hallmark Cards, Inc., 45 NY2d 493, 498 (1978). To set aside as a matter of law a jury verdict as not supported by sufficient evidence, this court must conclude that "that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial." Id. at 499. "The test is not whether the jury erred in weighing the evidence, but whether any viable evidence existed to support the verdict." (citations omitted) Lolik v. Big V Supermarkets, Inc., 86 NY2d 744 (1995).
The City made an oral application before this court at the conclusion of the trial for a directed verdict on the ground that plaintiff did not establish a prima facie case. That application was denied by this court on the record. Similarly, the City now moves to have the verdict set aside as a matter of law based on similar grounds. It has been established that "the criteria to be applied in making this assessment are essentially those required of a trial judge asked to direct a verdict." Cohen, 45 NY2d 493, 499 (1978). Accordingly, that branch of the City's motion is denied. This court finds that there was sufficient evidence presented to the jury to establish the plaintiffs' prima facie case and there was a valid line of reasoning that led to the conclusion reached by the jury in the case at bar.
Contrary to a motion to set aside as a matter of law, "the criteria for setting aside a jury verdict as against the weight of the evidence are necessarily less stringent . Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors." Nicastro v. Park, 113 AD2d 129, 132-33 (2nd Dept. 1985). "While the statutory standard has been characterized as an elusive one which has long defied precise definition,' it is a settled rule that a jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence." McDermott v. Coffee Beanery, Ltd., 9 AD3d 195, 206 (1st Dept. 2004), quoting Nicastro, 113 AD2d 129, 132; See Lolik, 86 NY2d 744, 745-746.
Moreover, it is well established that the court's discretionary power pursuant to CPLR 4404, "must be exercised with caution since, in the absence of an indication that substantial justice has not been done, a litigant is entitled to the benefit of a favorable verdict. Fact-finding is within the province of the jury, not the trial court. [A] jury verdict in favor of a defendant should not be set aside unless the jury could not have reached the verdict on any fair interpretation of the evidence ." (citations omitted). Brown v. Taylor, 221 AD2d 208 (1st Dept. 1995). Viewing the evidence in the light most favorable to the plaintiff, the jury could have rationally concluded that the City defendants failed to use the degree of care that was reasonable under the circumstances. The jury's unanimous verdict as to liability suggests that they found the City defendants acted recklessly and negligently by pursuing defendant Gonzalez through the streets of the Bronx, and that such recklessness and negligence were substantial factors in causing injury to Lee. Accordingly, the jury's verdict was not inconsistent or against the weight of the evidence. There was ample evidence, including testimony, to support the jury's [*3]finding that the City defendants' actions substantially caused Lee's injuries.
Furthermore, ordering a new trial in the interest of justice "is predicated on the assumption that the judge who presides at trial is in the best position to evaluate errors therein." Micallef v. Miehle, 38 NY2d 376 (1976). Applying these principals to the present case, the motion to set aside the verdict in the interest of justice is denied. The rulings referred to by defendants in their papers were proper, and as such, there is no evidence "that substantial justice has not been done" in this case. Gomez v. Park Donuts, 249 AD2d 266 (2nd Dept. 1998).
With respect to the jury's award to the plaintiffs for damages, courts have held that the amount of damages to be awarded for personal injuries is primarily a question of fact for the jury. Iazzetti v. City of New York, 216 AD2d 214 (1st Dept. 1995). In order to determine if an award is excessive, the standard that has been applied in the appellate courts and which has been applied at the trial court level as well is, if it "deviates materially from what would be reasonable." CPLR 5501(c). Thus, the amount of damages awarded by a jury may be set aside if it deviates materially from what would be reasonable compensation. See Donlon v. City of New York, 284 AD2d 13 (1st Dept. 2001). In determining what is reasonable, the court must compare analogous verdicts and determine whether the current award substantially deviates from those benchmarks. Id. at 16. However, the trial court must "be wary of substituting its judgment for that of a panel of fact finders whose peculiar function is the fixation of damages. Modification of damages, which is a speculative endeavor, cannot be based upon case precedent alone, because comparison of injuries in different cases is virtually impossible." So v. Wing Tat Realty, Inc., 259 AD2d 373, 374 (1st Dept. 1999).
In support of the defendants' contention that the majority of the $28 million jury award deviates materially from what would be reasonable compensation, counsel directs the court's attention to several cases where the plaintiff allegedly sustained similar or more significant injuries than those sustained by Lee and whose awards were significantly lower than that of the plaintiff: Grinberg v. C & L Contr. Corp., 107 AD3d 491 (1st Dept. 2013), 63 year-old plaintiff suffered severe injuries to his left leg and a spiral fracture to the fibula, near the knee, verdict of $500,000 for past pain and suffering and $450,000 for future pain and suffering; Hernandez v. Ten Co., 102 AD3d 431 (1st Dept. 2013), plaintiff sustained fractures to his tibia and fibula, verdict of $1 million sustained for past pain and suffering over eight years and $2.166 million for future pain and suffering over 25.8 years, as opposed to plaintiff Lee who was given a life expectancy of 7 years; and Huang v. NYCTA, 49 AD3d 217 (1st Dept. 2008), 18 year-old plaintiff who suffered crush injuries to her left hip and leg, including multiple fractures and spinal nerve injury, award for future pain and suffering reduced from $12.25 million to $5 million.
By contrast, plaintiffs submit numerous cases, most of which are not similar to the instant action at all, where the jury verdict exceeds the award in the instant action. Curiously, plaintiffs have addressed each individual injury by body part in isolation, and cited a large number of cases involving child plaintiffs, wrongful death actions, and class action lawsuits. In Young v. Tops Markets, Inc., 283 AD2d 923 (4th Dept. 2001), award for 4 and half years of past pain and suffering reduced from $1.5 million to $1 million and for 25 years of future pain and suffering reduced from $5.5 million to $2.5 million for plaintiff who suffered injuries to his right femur, spinal column, pelvis, and right knee.
Taking into account the cases cited by the parties and reviewing the factual analysis in the case at bar, this court finds that the jury award is excessive and should be reduced as follows: (1) for past pain and suffering reduced from $8 million to $1 million; (2) for future pain and suffering reduced from $14 million to $3 million; (3) for past loss of services and society reduced from $2 million to $100,000; (4) for future loss of services and society reduced from $2 million to $200,000; and (5) $1.5 million for future medical treatment should be set aside as a matter of law as there was no evidentiary basis to support that amount.
Accordingly, the motion by defendants the City of New York and Detective Carlos Marchena pursuant to CPLR 4404, is granted in part and denied in part.
It is hereby
ORDERED, that unless within thirty (30) days of service of a copy of the order with notice of entry plaintiff stipulates to a reduction of the award as follows: (1) for past pain and suffering reduced from $8 million to $1 million; (2) for future pain and suffering reduced from $14 million to $3 million; (3) for past loss of services and society reduced from $2 million to $100,000; (4) for future loss of services and society reduced from $2 million to $200,000; and (5) set aside as a matter of law $1.5 million for future medical treatment, a new trial of the issue of damages shall occur; and it further
ORDERED, that entry of judgment will be stayed until 60 days after the decision on all post-trial motions; and it is further
ORDERED, that all other relief is denied.
Defendants are directed to serve a copy of this order with notice of entry upon all parties within thirty (30) days of entry and file proof thereof with the office of the county clerk
This constitutes the decision and order of this court.
Dated: December 22, 2015
ENTER:
______________________________
J.S.C.
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